Citation Nr: 0429822
Decision Date: 11/04/04 Archive Date: 11/10/04
DOCKET NO. 03-06 891 ) DATE
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On appeal from the
Department of Veterans Affairs Medical and Regional Office
Center in Wichita, Kansas
THE ISSUE
Entitlement to an increased disability rating for service-
connected degenerative joint and disc disease of the lumbar
spine with radiculopathy, currently evaluated as 10 percent
disabling.
REPRESENTATION
Veteran represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
Jessica J. Wills, Associate Counsel
INTRODUCTION
The veteran had active service from July 1969 to July 1973,
from November 1977 to June 1989, and from May 1994 to
September 1999.
This matter comes before the Board of Veterans' Appeals (the
Board) on appeal from an October 2001 rating decision of the
Department of Veterans Affairs (VA) Regional Office in
Wichita, Kansas (the RO) which granted service connection for
degenerative joint and disc disease of the lumbar spine with
radiculopathy.
A 10 percent disability rating was assigned effective October
1, 1999, the day after the veteran left military service.
The veteran disagreed with the assigned 10 percent disability
rating and subsequently perfected an appeal as to that issue.
The appeal is REMANDED to the RO via the Appeals Management
Center (AMC), in Washington, DC. VA will notify the veteran
if further action is required on his part.
REMAND
Upon preliminary review of the claims file, and for reasons
stated immediately below, the Board finds that additional
development is needed in this case before proceeding with
appellate review for the reasons set forth below.
The veteran has been assigned a 10 percent disability rating
for his service-connected lumbar spine disability under
former Diagnostic Code 5293.
During the pendency of this appeal, VA twice amended the
rating schedule for evaluating disabilities of the spine,
contained in 38 C.F.R. § 4.71a. VA most recently revised the
regulations for evaluating disabilities of the spine
effective September 26, 2003. See 67 Fed. Reg. 54345 - 54349
(Aug. 22, 2002); 68 Fed. Reg. 51454 - 51458 (Aug. 27, 2003);
see also 69 Fed. Reg. 32449 - 32450 (June 10, 2004).
The new criteria for evaluating service-connected spine
disabilities are codified at newly designated 38 C.F.R.
§ 4.71a, Diagnostic Codes 5235 through 5243. Of particular
interest is that former Diagnostic Code 5293, under which the
veteran's lumbar spine disability was initially rated, has
been extensively revised.
The veteran has not been notified of these changes in the
law, nor has the RO adjudicated the issue on appeal with
consideration of the revised rating criteria.
The veteran must be informed of these changes in the
regulation, and the agency of original jurisdiction must
consider the veteran's service-connected back disability
under the revised regulatory criteria. It would potentially
be prejudicial to the veteran if the Board were to proceed
with a decision at this time. See Bernard v. Brown, 4 Vet.
App. 384 (1993).
In addition, the Board notes that the veteran was afforded a
VA examination in July 2001 in connection with his claim for
service connection. The veteran has not been afforded a VA
examination in connection with his current claim. The Board
finds that a more recent VA examination, which takes into
consideration the changes in the rating criteria referred to
above, is warranted.
Accordingly, this case is REMANDED to the Veterans Benefits
Administration (VBA) for the following actions:
1. VBA should schedule the veteran for
a physical examination to determine the
severity and manifestations of his
degenerative joint and disc disease of
the lumbar spine with radiculopathy.
The examiner should review the
veteran's VA claims folder in
conjunction with the examination. The
examiner is requested to comment on the
severity of the veteran's service-
connected back disability. The
presence of objective evidence of pain,
excess fatigability, incoordination,
and weakness should be noted, as should
any additional disability due to these
factors. The report of the examination
should be associated with the veteran's
VA claims folder.
2. Thereafter, VBA should adjudicate
the issue of entitlement to an
increased rating for degenerative disc
joint and disc disease of the lumbar
spine with radiculopathy, to include
consideration of the revised rating
criteria, as amended effective
September 23, 2002 and September 26,
2003. If the benefit sought on appeal
remains denied, the veteran and his
representative should be provided a
supplemental statement of the case that
includes the new schedular criteria
applicable to spinal disabilities and
should be given an appropriate
opportunity to respond.
The veteran has the right to submit additional evidence and
argument on the matter addressed by the Board in this remand.
See Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board for
additional development or other appropriate action must be
handled in an expeditious manner. See The Veterans Benefits
Act of 2003, Pub. L. No. 108-183, § 707(a), (b), 117 Stat.
2651 (2003) [to be codified at 38 U.S.C. §§ 5109B, 7112].
_________________________________________________
Barry F. Bohan
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Appeals for Veterans Claims. This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal.
38 C.F.R. § 20.1100(b) (2003).